News Release ~ 06/11/1999

Loitering Law Struck Down

Washington, DC (June 11, 1999) --

The U.S. Supreme Court ruled yesterday that Chicago’s “Gang Congregation Ordinance,” prohibiting “criminal street gang members” from “loitering” with one another or with other persons in any public place with “no apparent purpose.” Chicago v. Morales, No. 97-1121. The ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution because it is impermissibly vague — encompassing harmless behavior — and because it gives the police excessive discretionary power — to decide who looks like a gang member; what activities constitute “loitering,” and whether purposes are apparent. The National Association of Criminal Defense Lawyers (NACDL) filed a friend of the court brief authored by Law Professor Donald A. Dripps, protesting the ordinance. An excerpt is attached.

NACDL President Larry Pozner issued the following statement from his office in Denver today:

“The Supreme Court rejected one of the most intrusive threats to liberty. The American right to be free from police harassment has trumped the innate police desire to arrest whomever they want whenever they want. Such loitering laws have no place in a free society where just ‘standin’ on the corner,’ bothering no one, is protected by the Constitution.

“We threw out medieval ‘poor laws’ — allowing imprisonment or enslavement of supposedly idle loiterers — when we threw out the British. But America’s courts have had to repeatedly invalidate state and local loitering and vagrancy laws aimed at oppressing the poor and, especially, people of color.

“We call on the Clinton administration, with its recent denunciation of ''racial profiling’ by police, to join us in celebrating this victory for American Liberty.”

Excerpt from NACDL Amicus Brief:


The Illinois Supreme Court held the ordinance void for vagueness and a violation of substantive due process. This Court should affirm those holdings.

The indeterminacy of the ordinance confers lawless discretion on the Chicago police. Gang membership in Chicago is, by any measure, distressingly common, so that even if the police targeted only bona fide gang members, they would have a sweeping license to hector groups of young people. The police, moreover, can perceive gang membership when none exists. The police decide when citizens have “no apparent purpose” so that purposes apparent to the citizen need not be apparent to the police. The police decide when submission to their commands does not follow “promptly,” and the police decide what it means to “disperse” and to “remove . . . from the area.”

Citizens cannot know when they are liable under the ordinance. They do not know whether their companions are in fact gang members, let alone apparent gang members. They do not know when they have “no apparent purpose” while standing on public ground. They do not know how far they must disperse before they “remove themselves from the area.” The statutory requirement of a police warning does nothing to cure the failure to give fair warning, because the citizen has the right to know, not when he or she might be arrested, but when he or she might be convicted.

The Illinois Supreme Court determined that the ordinance is an arbitrary violation of the liberty protected by the Fourteenth Amendment, and thus forbidden by substantive due process. The liberty to move about in public, free from physical restraint, lies at the heart of the traditional understanding of due process. That freedom is subject to abridgement only when public policy is narrowly tailored to serve a compelling state interest. Here, citizens who comply with police orders are not incarcerated, but are nonetheless deprived of the fundamental right to stay or to go at will, free from coercive restraint.

If this Court should reverse the Illinois Supreme Court on both vagueness and substantive due process grounds, the judgment below should be affirmed on the basis of the Illinois Appellate Court’s holding on Fourth Amendment grounds. A law authorizing the police to detain and question individuals for “loitering” with a gang member would violate the Fourth Amendment as construed in Terry v. Ohio, 392 U.S. 1 (1968) and its progeny. Here the statute authorizes custodial arrest and subsequent punishment for conduct that does not even meet the Terry reasonable suspicion standard. A substantive criminal law that serves interests independent of authorizing police investigation of other, incipient offenses quite validly expands police authority to stop, question, and arrest. This ordinance, by contrast, furthers no public interest other than expanding police authority to prevent or investigate other crimes.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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